CORONERS ACT, 1975 AS AMENDED
SOUTH
AUSTRALIA
FINDING OF INQUEST
An Inquest taken on behalf of our Sovereign Lady the Queen at
Adelaide in the State of South Australia, on the 21st, 22nd and 23rd days of February 2005 and
the 12th day of April 2005, before Wayne Cromwell Chivell, a Coroner for the said State,
concerning the death of Richard John Kartinyeri.
I, the said Coroner, find that Richard John Kartinyeri aged 60 years,
late of 4 Seymour Street, Tailem Bend, South Australia died at the Flinders Medical Centre,
Bedford Park, South Australia on the 27th day of September 2002 as a result of respiratory
failure and sepsis complicating acute subdural haematoma. I find that the circumstances of
his death were as follows:
1.
Introduction
1.1.
Richard John Kartinyeri was born on 6 June 1942 at Raukkan on the banks of Lake
Alexandrina. Mr Kartinyeri was the defacto husband of Melva Kropinyeri for more
than 40 years. He was the father and step-father of nine children, two of whom are
deceased. He had been a talented footballer in his youth, and he was a well-known
identity in the small town of Tailem Bend.
He was described as a competent
mechanic, a good fisherman and a good gardener (Exhibit C20a, p1).
1.2.
Mr Kartinyeri died on 27 September 2002 as a result of injuries he received on 14
August 2002 when he jumped or fell from a moving vehicle in Railway Terrace at
Tailem Bend, and collided with the roadway sustaining severe head and other injuries.
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1.3.
Mr Kartinyeri was a passenger in a vehicle which was being pursued by a police
officer because the driver of the vehicle, Allen John Fuss, had committed several
traffic offences.
1.4.
This incident has been the subject of an extensive investigation by a team led by
Inspector Robert Williams at the direction of the Acting Deputy Commissioner of
Police, Mr G D Brown. This process is known as a Commissioner’s Inquiry.
1.5.
Mr Kartinyeri had not been apprehended, and no form of physical restraint had been
placed upon him, and so it could not be said that he had been ‘detained in custody
pursuant to an Act or Law of the State’ within the meaning of Sections 12(1)(da) and
14(1)(b) of the Coroners Act 1975 which would render an inquest into his death
mandatory.
1.6.
A protocol for investigation into deaths in custody developed pursuant to the
recommendations of the Royal Commission into Aboriginal Deaths in Custody
includes situations such as the death of Mr Kartinyeri in the sense that his death
occurred while police were attempting to detain the occupants of the vehicle in which
he was travelling.
1.7.
In those circumstances, and having regard to the issues which have arisen in this case,
I have deemed an inquest into Mr Kartinyeri’s death ‘necessary’ and ‘desirable’
within the meaning of Section 14(1)(a) of the Coroners Act.
2.
Events leading to the fatal incident
2.1.
Allen Fuss told me that he had been at the Railway Hotel at Tailem Bend on the
evening of 14 August 2002, drinking alcohol.
He readily admitted that he was
intoxicated (T16).
2.2.
While at the hotel, Mr Fuss met and began drinking with Mr Kartinyeri and two of his
step-daughters, and they later adjourned to the Kartinyeri residence in Tailem Bend.
2.3.
The statement of Maria Kropinyeri, one of Mr Kartinyeri’s step-daughters, indicates
that Mr Kartinyeri and Mr Fuss had only met each other that evening (Exhibit C11a,
p3). At one stage during the evening, Mr Fuss drove her, her friend and her niece
home from the hotel.
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2.4.
Ms Kropinyeri said that she was also drunk that evening, and that:
'We went into the house and we all sat down drinking and then my father needed a
packet of cigarettes and that’s when it all happened.'
(Exhibit C11a, p7)
2.5.
At a stage earlier than the final journey, Mr Fuss drove Mr Kartinyeri to the hotel to
buy some beer. Mr Fuss explained that he had been banned from the Riverside Hotel
as a result of an earlier incident, so Mr Kartinyeri went in and bought the alcohol.
2.6.
Mr Jason Edwards, a Bar Person at the Riverside Hotel, described what happened in
his statement:
'At about 9:00pm on Wednesday the 14th of August 2002, I was in the front bar of the
hotel, which fronts onto Princes Highway. I saw headlights travelling toward the hotel
from North Terrace at the T junction with Princes Highway. The vehicle travelled across
Princes Highway, over the lawn dividing strip which separated Princes Highway and the
hotel car park and then across the car park and stopped. I recognised the vehicle as a
blue F100, Ford utility which belonged to Allen Fuss, a local man. The car park was
well lit and I could see the driver of the utility was Allen Fuss. He appeared to be
drinking from something in his right hand. The front seat passenger was Richard
Kartinyeri. Kartinyeri got out, walked to the bottle shop and returned to the utility with a
carton of Victoria Bitter stubbies and got back into the front passenger seat of the utility.
The utility reversed about 5 to 7 metres, then drove up the kerb onto the lawn area. The
utility accelerated hard causing the rear of the vehicle to ‘fishtail’ to the left as the
vehicle started going sideways. It drove onto the lawn and then around the bench onto
the car park before driving straight over the kerb again onto Princes Highway and along
North Terrace.'
(Exhibit C6, pp1-2)
2.7.
Mr Edwards reported the matter to the police and Senior Constable George Fox of the
Tailem Bend Police Station was tasked to attend and investigate.
2.8.
Senior Constable Fox attended at the Riverside Hotel and spoke to Mr Edwards and
took a statement from him. At about 9:30pm, as he was driving away from the hotel
on North Terrace, he saw a blue Ford F100 pass him in the opposite direction. He
performed a U-turn and followed the F100 through the rear of the Shell Roadhouse
and the back of the hotel and on to Murray Street to travel east. He activated the red
and blue flashing lights and advised Murray Bridge by radio that he was commencing
pursuit.
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2.9.
Senior Constable Fox followed the vehicle along Murray Street at speeds up to 90
kilometres per hour through several intersections. He then turned left into South
Terrace and then left again into Railway Terrace to travel west. He was ‘calling the
chase’ over the radio and requesting backup. He said:
'I was aware that a traffic patrol, Hills 026, Geoff Capper, was in the area. I’d seen him
on three occasions, say an hour or 45 minutes prior to this.'
(Exhibit C24, p5)
2.10. On Railway Terrace, Senior Constable Fox saw the following:
'I saw something come from the vehicle … On First seeing it I just sort of believed that
something may have come out of the back of the vehicle. I looked- My first thought was
a branch of a tree for some reason, it was just a dark sort of shape, … just something
come out from the vehicle. Seeing that fall to the road I moved over to the right of, of its
location so I wouldn’t collide with it. On nearing it and within my headlights and at this
stage I suppose I’m travelling about 60 kmh like the speed of that vehicle would’ve been
at that time, at that location, that point of time. I then saw a male person roll on to the
road, all right, and my thought was, immediately then, was either I stop or continue.'
(Exhibit C24, pp5-6)
2.11. Senior Constable Fox said that he radioed in and advised of what he had seen and
continued pursuing the vehicle. He requested the attendance of an ambulance. He
again called for assistance to ascertain where Hills 026 was.
2.12. Senior Constable Fox said that as he passed the Riverside Hotel on Railway Terrace,
he crossed North Terrace at speeds of up to 120 kilometres per hour while following
the F100. The Ford then turned left into Tenth Street and then left again on to the
access road to the Princes Highway to travel back in an easterly direction. He said:
'On doing so the rear of the vehicle has broken loose. I could see in my headlights the
rear wheels of his vehicle spinning rapidly and the vehicle has fishtailed around to the
right. He’s gone partly up on to a, the kerbing, or the lawn area … such that his
headlights was pointing directly at me. I thought at this stage that he may ram me. I
then moved to the right to be off the road on to the right side of the road, give him
passage to, to go past me so he wouldn’t ram me. He’s then gone up on to the kerbing,
the lawn area, and then continued to travel on the Princes Highway access road in a west
direction.'
(Exhibit C24, p8)
2.13. The driver of the Ford F100 applied the brakes and then turned left on to the Princes
Highway, and then at a crossover turned right to travel west on the Princes Highway
towards Murray Bridge. However, after travelling only a short distance he applied the
brakes again, and then performed a U-turn at another crossover and travelled east
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back towards Tailem Bend. Upon entering the town, he slowed and turned left onto
the access road again, by this time travelling at only 30 kilometres per hour or so, and
eventually drove to and stopped at the Police Station. Senior Constable Fox said the
driver was remorseful and apologised for his actions (Exhibit C24, p9). Mr Fuss was
arrested and taken into custody.
2.14. The first person to find Mr Kartinyeri on the roadway was Ms Pasqualina Ullucci,
who was passing in her car. She drove to the police station just as Senior Constable
Fox followed Mr Fuss into the carpark and proceeded to arrest him. She told Senior
Constable Fox about a body in Railway Terrace. Senior Constable Fox told her that
an ambulance had already been called. She then returned to the scene to prevent
another accident. By this time another member of the public was also there, and the
ambulance arrived at around the same time (Exhibit C12a, p2).
2.15. In the meantime, Senior Constable Capper had reached Tailem Bend and had driven
along Railway Terrace and found Mr Kartinyeri lying in the middle of the southbound side of the road. He positioned his vehicle across the road and made a further
call for the attendance of an ambulance. He noted that Mr Kartinyeri was breathing
very heavily and did not respond to questions. He noted bleeding slightly from the
mouth, a strong smell of liquor, a large amount of ‘clear fluid not blood’ extending
from the head of the person to the kerb (Exhibit C22a, p2).
2.16. Senior Constable Capper said that within a minute or so of his arrival an ambulance
arrived and began attending to Mr Kartinyeri.
2.17. Senior Constable Capper noted the remains of a broken beer bottle in the centre of the
road just north of where Mr Kartinyeri had been lying. He also noted a large wet
patch about 2 metres long and about 500mm wide running down the centre of the road
(Exhibit C22a, p2).
2.18. Mr Kartinyeri was taken by ambulance to Tailem Bend Hospital. What transpired
from there has been summarised by Dr J D Gilbert, the Forensic Pathologist who
performed the post-mortem examination of Mr Kartinyeri’s body. Dr Gilbert’s report
reads as follows:
'The deceased was reportedly a front seat passenger in a vehicle involved in a police
pursuit at Tailem Bend on the night of 14 August 2002. He had a past history of rightsided rib and scapular fractures, hypertension, alcohol abuse and emphysema.
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He exited the vehicle while it was in motion and was found lying on the road. He was
initially assessed at Tailem Bend Hospital and was found to be unconscious (GCS 3)
with poor respiratory effort and with blood in the airways. He had a right periorbital
haematoma and was bleeding from the mouth and nose. He was retrieved to Flinders
Medical Centre where a CT scan of the head showed a large right-sided acute subdural
haematoma, right frontal, parietal and temporal lobe contusions and right temporal and
occipital skull fractures.
He was taken to theatre for urgent evacuation of the subdural haematoma. Immediately
postoperatively, his intracranial pressure was satisfactory but shortly thereafter it began
to rise and a repeat CT scan showed enlargement of the right-sided parenchymal
contusions. This did not initially respond to medical measures and some herniation of the
brain through the craniotomy defect was noted. He was returned to theatre where the
bone flap was removed, a right temporal lobectomy was performed and a postoperative
subgaleal haematoma was evacuated. He was managed subsequently in the Critical Care
Unit.
By 18 August, the intracranial pressure had moderated. Over the next few days, it was
apparent that he had ARDS changes in both lungs and, when not sedated, withdrawal to
a painful stimulus was noted. Episodic hypertension was noted and treated with
clonidine and captopril. By 26 August eye opening to a painful stimulus was
demonstrated and there were spontaneous movements of all limbs except the left arm. He
remained ventilator dependent however.
By 2 September his overall neurological outlook was considered ‘very poor’. On 6
September he was discharged from the Critical Care Unit. A CT scan on 9 September
showed a left-sided hygroma (chronic subdural collection) that was evacuated via a
burrhole the following day. Additional hygroma fluid (approximately 70 mLs) was
aspirated via the burrhole on 20 September.
A left chest drain was inserted on 22 September following oxygen desaturation
associated with low-grade fever and radiological evidence of ongoing left lower lobe
consolidation and a left pneumothorax. A chest tube was inserted and immediately
drained air through an underwater seal drain. On 26 September subcutaneous
emphysema of the chest and respiratory failure were noted. The deceased’s family was
notified. He was then treated with morphine for comfort care and atropine to reduce his
respiratory secretions. At 1900 hours that day he had a large vomit and was thought to
have aspirated vomitus via his tracheostomy. He was febrile, tachycardic, hypertensive
and tachypnoeic with worsening surgical emphysema. He was certified dead at 0045
hours 27 September.'
(Exhibit C3a, pp4-5)
3.
Cause of death
3.1.
A post-mortem examination of the body of the deceased was performed by Dr Gilbert
on 30 September 2002 at the Forensic Science Centre. Following his examination, he
concluded that the cause of death was:
'Respiratory failure and sepsis complicating acute subdural haematoma.'
(Exhibit C3a, p1)
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3.2.
Dr Gilbert commented:
'Death has been attributed to respiratory failure and sepsis complicating prolonged
mechanical ventilation following treatment for a large right-sided acute subdural
haematoma resulting from blunt head trauma due to a fall from a moving motor vehicle
approximately 6 weeks prior to death.'
(Exhibit C3a, p4)
3.3.
A neuropathological assessment was performed by Professor P C Blumbergs at the
Institute of Medical and Veterinary Science.
Professor Blumbergs’ detailed
examination of the brain disclosed the following injuries:
'1. Compression deformity of right cerebral hemisphere consistent with decompressive
craniotomy.
2. Patchy haemosiderin staining of leptomeninges consistent with old subarachnoid
haemorrhage.
3. Cystic necrosis of right temporal lobe.
4. Cystic necrosis of left temporal lobe.
5. Evidence of previous episode of raised intracranial pressure with subfalcine
herniation and cortical necrosis in the anterior cerebral artery territories (bilateral),
focal infarction of the corpus callosum and infarction in right posterior cerebral
artery territory.
6. Swelling of left cerebral hemisphere with evidence of disruption of the rostral brain
stem by multiple recent secondary haemorrhages.
7. Evidence of old subdural haemorrhage '
(Exhibit C4a, p2)
3.4.
A microscopic examination of the brain produced similar findings (see Exhibit C4b).
3.5.
Unfortunately, due to the transfer of Mr Kartinyeri between hospitals and the general
urgency of the situation, a blood sample was not taken prior to his death pursuant to
the provisions of the Road Traffic Act. Accordingly, it has not been possible to
determine whether, and to what extent, Mr Kartinyeri had consumed alcohol and was
affected by it at the time he fell from the vehicle.
3.6.
I accept Dr Gilbert’s conclusions concerning the cause of death, and find that it was
respiratory failure and sepsis complicating acute subdural haematoma.
3.7.
When Dr Gilbert gave oral evidence, he told me that the injury most urgently in need
of treatment was the subdural haematoma. This injury gives rise to an immediate
8
need for surgical intervention in the form of a craniotomy so that any pressure being
applied to the brain by the haematoma can be relieved.
3.8.
Dr Gilbert said that the evidence from the ambulance records and the clinical record at
Flinders Medical Centre indicates that Mr Kartinyeri was urgently evacuated firstly to
Tailem Bend Hospital, and then to Flinders Medical Centre where he immediately
underwent an operation. He later developed cerebral contusions requiring further
surgery, which was carried out without delay. Dr Gilbert said that, in his opinion, the
treatment given to Mr Kartinyeri was both appropriate and timely (T151).
3.9.
Unfortunately, the pressure which had already been applied to Mr Kartinyeri’s brain
prior to the surgery was such that he remained unconscious and required mechanical
ventilation which led to pneumonia and to his eventual death. Dr Gilbert said that in
those circumstances, Mr Kartinyeri had no prospect of recovery, and that there was
nothing that either the police officers or the ambulance officers could have done at the
scene which would have changed the outcome.
Mr Kartinyeri was breathing
spontaneously and adequately and his blood pressure and pulse were both adequate at
the scene, so he was not in need of resuscitation at that time (T150-T151).
4.
Issues arising at inquest
4.1.
Why did Richard Kartinyeri exit the vehicle?
The evidence is clear that Mr Fuss was driving his vehicle erratically and
dangerously. He did not dispute Senior Constable Fox’s evidence that he drove at
about 60 kilometres per hour down Murray Street through two spoon drains causing
the vehicle to pitch violently, and that he disregarded two give way signs. He then
made left turns into South Terrace and then into Railway Terrace at a fast speed and
then travelled about 90 metres along Railway Terrace before Mr Kartinyeri exited the
vehicle. Having regard to the position of Mr Kartinyeri’s body on the roadway
(across the northbound carriageway of Railway Terrace), it is likely that the vehicle
was on the incorrect side of the road at the time he exited.
4.2.
Mr Charles, counsel for several of Mr Kartinyeri’s family members, pointed to the
family statement (Exhibit C20a) and in particular their statements that Richard
Kartinyeri was scared of driving in motor vehicles, particularly when they were being
driven fast. He submitted that Mr Kartinyeri must have been ‘terrified’ by Mr Fuss’
driving and that this was why he panicked and exited the vehicle.
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4.3.
While I understand the force of that submission, it is difficult to reconcile with the
fact that Mr Kartinyeri undertook two journeys with Mr Fuss that night, the initial one
to the Riverside Hotel when they were seen by Mr Edwards, during which Mr Fuss
was driving so erratically that Mr Edwards called the police, and the second journey
when they were driving to the Roadhouse to get cigarettes and when they were
pursued by Senior Constable Fox. If Mr Kartinyeri was terrified of Mr Fuss’ driving,
it is difficult to understand why he might have got into the car a second time.
4.4.
It is not known whether Mr Kartinyeri was intoxicated by alcohol that evening. Maria
Kropinyeri said that her step-father was ‘not really drunk’ (Exhibit C11a, p10). Ms
Melva Kropinyeri said that he had a couple of stubbies of beer that night and was ‘not
seriously intoxicated’ (Exhibit C20a, p2).
4.5.
Senior Constable Capper said that he detected a strong smell of liquor about Mr
Kartinyeri’s person when he first arrived at the scene, but pointed out that there was a
broken beer bottle in the centre of the road just north of where he was lying, and a
large wet patch in the vicinity which could have accounted for the smell (Exhibit
C22a, p2).
4.6.
There was an allegation in Maria Kropinyeri’s statement which is, as far as I can tell,
third hand hearsay, that the passenger door on Mr Fuss’ F100 was faulty, giving rise
to the suggestion that Mr Kartinyeri may have fallen out of the vehicle accidentally
(Exhibit C11a, p6).
4.7.
This was checked thoroughly by the Police Mechanic, Christopher Graham, who
found:
'The left door was springy when closed, however the door did lock. The left door opened
from the inside.'
(Exhibit C15a, p7)
4.8.
Mr Graham also commented that the front left seatbelt was retracted when he
examined it, and that the ‘nail tongue would lock to the stalk and hold’ (ibid).
4.9.
Mr Fuss gave oral evidence and I agree with Mr Charles’ comment that he was an
unsatisfactory witness. His evidence vacillated between denials and claims that he
was unable to remember on the basis of his intoxication. He did tell me that Mr
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Kartinyeri said words to the effect of ‘I’m out’ or ‘I’m jumping out’ before he opened
the door and was gone (T38).
4.10. On the basis of the above evidence, I think it is appropriate to exclude accident on the
balance of probabilities.
If Mr Kartinyeri had exited while the vehicle was
negotiating a right turn at speed, accident might be more feasible. However, the
vehicle was being driven in basically a straight line.
That, added to Mr Fuss’
evidence, to which I am unwilling to give great weight, makes a finding of a
deliberate action on Mr Kartinyeri’s part more likely.
4.11. It is impossible to know what motivated Mr Kartinyeri to exit the vehicle when he
did. The evidence of Senior Constable Fox was that the vehicle was travelling at
about 60 kilometres per hour when he exited. It is possible that he had some sort of
panic attack. It is also possible that he was more severely intoxicated than the
evidence presently suggests. A further possibility is that both of these factors may
have played a part. In either event, I am in no doubt that Mr Kartinyeri’s actions,
extreme and unpredictable as they were, were prompted by Mr Fuss’ dangerous and
irresponsible driving.
4.12. Urgent Duty Driving
This is another case involving what is described in South Australia Police (‘SAPOL’)
General Orders as ‘Urgent Duty Driving’.
I have discussed the issues herein
previously in my findings in relation to the deaths of Brenton Maurice Goldsmith in
May 2001 (Inquest 17/2003), and Tyson Matthew Charles Lindsay in February 2001
(Inquest 15/2004).
4.13. I set out the relevant General Order (210/01) in Goldsmith as follows:
'6.1 When you use the exemption provided in Rule 305 of the Australian Road Rules in
responding to taskings or driving in a manner which, when compared to normal
risks, substantially increases the risk of injury to police, the public or suspects, or of
damage to property, the driving will be considered urgent duty driving.
In all urgent duty driving situations SAPOL’s operational safety philosophy and
principles must be applied. Safety must be the primary concern ahead of capture.
Urgent duty driving is an area of great potential risk for loss of life, injury or
damage to property. In all urgent duty driving situations:

The urgent duty driving should not be disproportionate to the circumstances.
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
Risk must be continually assessed in terms of the potential danger to all and the
risk of damage to property.

Police have a duty of care not to endanger other road users and must exercise
effective command and control.

Occupational health, safety and welfare requirements must be met.

The driver of the vehicle must be responsible for their actions.

The senior member may be held accountable for the actions of the driver.

You should consider helicopter assistance as the preferred option.'
(Exhibit C73)
6.2 The General Order sets out what should be done when a direction is given to
terminate urgent duty driving as follows:
'Terminate – immediately slowing the police vehicle and complying with the
area speed limit and the other traffic requirements, turning off all emergency
warning equipment, and resuming patrol'.
(Exhibit C73)
6.3 The policy governing urgent duty driving is stated as follows:
'Policy
Urgent duty driving may only be undertaken:

in response to an emergency involving obvious danger to human life; or

when the seriousness of the crime warrants it.
In all cases the known reasons for the urgent duty driving must justify the risk
involved.'
(Exhibit C73)
6.4 The ‘Considerations for Institution/Continuation’ are stated to be as follows:
Before commencing and while engaged in urgent duty driving the senior
member and the driver must consider:

the seriousness of the emergency or crime;

the degree of risk to the lives or property of police, the public or the
suspect/s;

whether the driver holds the appropriate driving permit;

whether immediate apprehension is necessary (if in pursuit);

the availability of other police assistance;

the capability and type of police vehicle or forthcoming assistance;

the practicability of using other stopping devices such as road spikes;

environmental and climatic conditions;

police driver competence and local knowledge.
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If the urgent duty driving involves a pursuit it must be terminated when:

the necessity to immediately apprehend is outweighed by obvious dangers to
police, the public or the suspects if the pursuit is continued; or

the apprehension can be safely effected later (eg, the identity of the
owner/occupants of the vehicle is known)

instructed by supervisor, State Duty Officer of Communications Senior
Sergeant.
If the urgent duty driving involves an emergency response it must be
terminated when the necessity to attend urgently is outweighed by obvious
dangers to police or the public.’
(Exhibit C73)
6.5 The Orders regarding additional vehicles joining a situation of urgent duty driving
are as follows:
'If the urgent duty driving involves the pursuit of a vehicle there is to be only
one primary vehicle and one backup vehicle.
No other police vehicle shall become involved in the pursuit unless directed by
the member responsible for controlling and coordinating the situation.
If the urgent duty driving involves an emergency response there is to be only
one first attendance vehicle unless directed by the member responsible for
controlling and coordinating the situation.'
(Exhibit C73)
6.6 The Orders regarding ‘Unmarked Police Vehicles’ taking part in urgent duty
driving include the following:
'A police vehicle which:

is not fitted with emergency equipment and markings;

is a prisoner escort vehicle; or

is a station wagon or utility;
and is engaged in urgent duty driving involving a pursuit, must be replaced, as
soon as possible, by a police vehicle (other than a motorcycle) fitted with
emergency equipment and markings.
Unmarked police vehicles should not be engaged in any urgent duty driving
situations unless exceptional circumstances exist.
(Exhibit C73)'
4.14. In his report, Inspector Williams summarised, correctly in my view, Senior Constable
Fox’s decision to initiate the pursuit of Mr Fuss’ vehicle as follows:
'
At that time he did not know who the driver was although he had been given a name
earlier and suspected the driver was Fuss. He was not aware that Fuss was in
possession of a Ford F100 utility.
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
He was aware of at least 2 Ford F100 utilities in Tailem Bend.

He did not have a registration number to identify the vehicle and possible driver.

He suspected the driver was intoxicated (based on the earlier statement and
behaviour).

The manner of driving gave him the opinion that there was ‘something else bizarre
in relation to his driving’.

He also felt that the driver was a danger both to himself and other members of the
public and needed to be stopped.'
(Exhibit C26, p19)
4.15. As to whether Senior Constable Fox should have terminated the pursuit after he saw
the male person rolling on the road, Inspector Williams summarised Senior Constable
Fox’s position as follows:
'
Should he continue the chase as he hadn’t any proof as to who the driver was.

He hadn’t at that stage been able to obtain a registration number to confirm the
identity of the vehicle for future follow up.

He wasn’t sure at the time that he first saw the object fall from the vehicle that it
may have been a person. He initially thought it may have been a log.

He also thought it may have been the driver of the vehicle attempting to flee and
expected the Ford F100 to stop just down the road.

When he travelled past Mr Kartinyeri and identified that it was in fact a person he
didn’t know how seriously the person was injured and thought that the person may
just get up and run away.

He believed that Hills 026 S/C Capper was in the close proximity and would
immediately assist.'
(Exhibit C26, p20)
4.16. Inspector Williams made the following analysis of Senior Constable Fox’s actions:
'It must be stressed that at the time when Mr Kartinyeri alighted from the Ford F100, S/C
Fox had just executed a left turn onto Railway Terrace. The above incident occurred on
a relatively dark stretch of road. Both the offending vehicle and S/C Fox’s police car
were in the process of accelerating and S/C Fox would not have expected an incident like
this to occur. His thought processes as listed above would have been over a span of
several seconds. His decision to continue the pursuit was based on his belief that S/C
Capper was only moments away (less than 1 minute). Whilst it has been proven that S/C
Capper was a reasonable distance away and in fact took approximately 5:24 minutes to
arrive on scene after the initial commencement of the pursuit, it was clear in S/C Fox’s
mind that he was much closer than this. S/C Capper at no stage gave a clear indication
as to his actual location or the length of time he would expect to take to get to the scene.
This has a major bearing on the decision to terminate or continue with the pursuit.'
(Exhibit C26, p20)
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4.17. Senior Constable Fox told me that if he had been aware that the male person on the
roadway was Mr Kartinyeri, whom he knew well and whom he liked and towards
whom he had acted compassionately in the past, he would have terminated the pursuit
(T132). I accept his evidence about that, although I find his position strange in that
his decision to stop or not should not have been determined by whether the man was
known to him or not.
4.18. Further, Senior Constable Fox told me that if he had been aware that Senior Constable
Capper was more than 5 minutes away from the scene, rather than less than 1 minute
away, he also would have terminated the pursuit (T143-T144). I accept his evidence
on that issue as well.
4.19. There was clearly a misunderstanding between Senior Constable Fox and Senior
Constable Capper as to each other’s movements that evening. Capper said in his
statement that he advised Murray Bridge of his location after he heard that the Tailem
Bend patrol was trying to stop a vehicle in Tailem Bend (Exhibit C22a, p1). Clearly,
this call occurred before Constable Marnane, who was the Radio Operator at Murray
Bridge, commenced recording radio transmissions. Neither Capper nor Fox could
recall precisely what Capper said about his location. The transcript, part of Exhibit
C26, is replete with confusing statements about the position of the vehicles and where
they were in relation to both the high-speed pursuit and the injured person on the
roadway.
4.20. Inspector Williams calculated that Senior Constable Capper did not reach Mr
Kartinyeri until somewhere between 5 minutes and 24 seconds and 5 minutes and 54
seconds after the pursuit commenced. If Mr Kartinyeri exited Mr Fuss’ vehicle about
40 seconds after the chase commenced, then he was lying on the roadway for between
4 minutes 44 seconds and 5 minutes 14 seconds.
4.21. Conclusions
Having regard to the considerations set out in Inspector Williams’ report quoted
above, I conclude that Senior Constable Fox’s decision to pursue Mr Fuss’ vehicle
was justified.
I am somewhat mystified by Senior Constable Fox’s decision to
continue the pursuit after he saw a male person had fallen from the vehicle. However,
the decision was taken in a split-second, in circumstances where he believed that his
colleague was in the near vicinity and would be able to render assistance.
He
immediately called an ambulance. Even if he had stopped, there was nothing that he
15
could have done to prevent Mr Kartinyeri’s death having regard to the terribly injury
he had sustained. In all those circumstances, I do not criticise Senior Constable Fox
for his decision to continue the pursuit.
4.22. Supervision
Senior Constable Colin Rohde was, at the time, a designated Shift Manager at the
Murray Bridge Police Station. He relieved Sergeant Ninnis for two periods of three
weeks at around this time. The question arose whether he had adequately discharged
his duty as Shift Manager in relation to his non-intervention in the urgent duty driving
of Senior Constable Fox. When asked about his role, he said:
'Just the responsibility for any taskings in the Murray Bridge area, to manage anything in
that nature.
(Exhibit C23, p3)
4.23. Later, he was asked:
'Did you believe that as Shift Manager for Murray Bridge, that you had any
responsibility in the management and control of what was, of that high speed, of that
pursuit?
A: Not for Tailem Bend, no.'
(Exhibit C23, p9)
4.24. Inspector Williams pointed out that Senior Constable Rohde’s attitude was in direct
conflict with Policy Statement 11, issued on 10 May 2002 by Superintendent T G
Rienets, the Superintendent in Charge of the Hills Murray Local Service Area
(‘LSA’). Included in that statement, are the following passages:
'The Shift Manager has the delegated authority of the Officer in Charge of the LSA to
use all resources within the LSA.
…
Shift Managers will be responsible for achieving best practice in service delivery
through:

Monitoring SAPOL Communications and the tasking workload for the entire LSA.

Liaising with supervisors from all Sections within the LSA …

…

Where appropriate perform the role of Police Forward Commander.

…

Liaising with the State Duty Officer when required.
…'
(Exhibit C19d, p2)
16
4.25. The clear import of this Policy Statement is that the responsibility of the Shift
Manager covered the entire LSA, not merely Murray Bridge. Surprisingly, Senior
Constable Rohde told me that he had never seen the document prior to coming to
court (T77). He added that even if he had seen the Policy Statement, he would not
have done anything differently on the night, and would have left it to the discretion of
Senior Constable Fox who was an experienced and cautious police officer (T76).
4.26. The role of a Supervisor in an urgent duty driving scenario is a vital one. A principal
responsibility of the Supervisor is to ascertain sufficient information from the
pursuing officer so that the Supervisor may form an independent and dispassionate
judgment about whether the pursuit should be discontinued. It is obvious that Senior
Constable Rohde did not seek out the requisite information to discharge this function.
4.27. Having said that, however, it is extremely unlikely that even the most assiduous
Supervisor would have intervened in the 40 seconds between the commencement of
the pursuit and when Mr Kartinyeri exited Mr Fuss’ vehicle.
4.28. If such an event were to occur now, all of these radio transmissions would have been
digitally recorded on the Government Radio Network (‘GRN’) and monitored not
only by a Radio Operator in Murray Bridge, but also by staff in the Communications
Centre in Adelaide and by the State Duty Officer, a Commissioned Officer. Such
officers are well trained in the supervision and management of urgent duty driving
situations, and would exercise the relevant discretion in such a case.
4.29. Conclusions
While Senior Constable Rhode failed to exercise any supervision of Senior Constable
Fox’s actions, I accept that he was unaware of his duty to do so outside the Murray
Bridge area. He was relieving another officer at the time, and it appears that the
relevant Policy Statement had not come to his attention, which needs to be addressed
by SAPOL management at the Hills Murray LSA.
5.
Recommendations
5.1.
Inspector Williams made the following recommendations in his report:
'1. Hills Murray LSA reinforce Policy Statement #11 – shift managers with all staff,
particularly in relation to areas of responsibility.
17
2. Murray Bridge Police reinforce the policy for recording operations of significance
and ensure the equipment is in a constant state of readiness.
3. No action be taken against S/C Fox in relation to failing to immediately stop after a
collision.
4. SAPOL consider implementing training for officers tasked with managing critical
incidents, particularly country officers who staff the communications network.
5. Mr Kartinyeri died on the evening of 26 September 2002, therefore consideration
should be given to having Major Crime Investigation Branch and O/C IIB review
this process in line with General Orders and Deaths in Police Custody guidelines.'
(Exhibit C26, p43)
5.2.
I agree with those recommendations. In view of the finding I have made, I make no
further recommendations pursuant to Section 25(2) of the Coroners Act, 1975.
Key Words: Death in Custody; Police (pursuit); Urgent Duty Driving; Intoxication
In witness whereof the said Coroner has hereunto set and subscribed his hand and
Seal the 12th day of April, 2005.
Coroner
Inquest Number 5/2005 (2704/2002)